Cohen v. Miller

Defendants
filed a Motion to Dismiss or for Summary Judgment (ECF 20) in
response to the above-entitled civil rights
complaint.[1] Plaintiff opposes the motion. ECF 29. The
Court finds a hearing in this matter unnecessary.
See Local Rule 105.6 (D. Md. 2014). For the reasons
stated below, Defendants' motion, construed as a Motion
for Summary Judgment, shall be granted.

This
Court directed counsel for Defendants to respond to
Plaintiff's Motion for Extension of Time indicating that
he was denied access to legal materials during the pendency
of this case. ECF 27. Prior to receipt of that response (ECF
30), Plaintiff filed a response indicating he had received
his legal materials. ECF 28. The issue regarding his alleged
denial of legal materials is therefore moot and will not be
addressed further.

Background

Plaintiff
Anthony Cohen, a prisoner confined to North Branch
Correctional Institution ("NBCI"), alleges that on
March 7, 2014, he was given a "false infraction" to
cover up a "malicious and brutal attack" on Cohen
by correctional officers. The assault was the subject of a
prior case filed by Cohen in this Court. See Cohen v.
Wexford Health Source, et al., Civil Action WMN-14-1850
(D. Md.).[2] He states that Officer Shawn Murray came
to the isolation cell where Cohen was being held, told him he
had an adjustment hearing, and then stated that Cohen would
not be attending the hearing. ECF 1 at p. 3.

On
March 19, 2014, Cohen appealed the adjustment hearing
decision to the warden, based on the refusal to allow him to
attend the hearing. In his appeal, Cohen states he never
received a copy of the infraction[3] prior to the hearing date
and that Officer Murray's comment regarding Cohen's
behavior being the reason he would not be allowed to attend
the hearing was unfounded. ECF 1-1 at p. 2. Cohen stated that
at the time he was told he could not attend the hearing, he
was sitting in his cell with a fever, high blood pressure,
and a mild concussion. Id. He further alleged that
Murray was not an escort officer, nor was he involved in
conducting adjustment hearings that day, so his presence at
Cohen's cell constituted harassment. Id. Cohen
claimed he could prove beyond a reasonable doubt he did not
commit the assault had he been allowed to attend the hearing.
Id. His appeal was denied by Assistant Warden
Richard Miller on April 5, 2014. ECF 1 at pp. 3 - 4, see
also ECF 1-1 at p. 12. Cohen appealed Miller's
denial, to the Inmate Grievance Office ("IGO") on
May 1, 2014. Id. at p. 4.

Cohen
states he sent three letters to the IGO inquiring about the
status of his appeal, dated July 15, 2014, August 4, 2014,
and August 18, 2014. Executive Director of the IGO, Scott
Oakley, dismissed Cohen's appeal as untimely, maintaining
the first correspondence received from Cohen was the letter
dated August 18, 2014. ECF 1 at p. 4.

Cohen
appealed the IGO dismissal to the Circuit Court for Allegany
County, alleging the dismissal was not valid because Cohen
had "all returned letters of inquiry." ECF 1 at pp.
4 - 5 He states the letters were stamped received by the IGO
on July 18, August 8, and August 25, 2014. Id.,
see also ECF 1-1 at pp. 15 - 20. The Circuit Court
affirmed the IGO's decision in an order dated June 4,
2015. ECF 1-1 at p. 13.

Cohen
states that in a similar case, Assistant Commissioner Randy
Watson issued a memorandum dated October 1, 2014, stating
that an officer in a different case did not have the
authority to decide that Cohen could not attend an adjustment
hearing. ECF 1 at p. 5, see also ECF 1-1 at pp.
21-23.

Cohen
claims he has been housed in punitive segregation since 2013
based on false infractions for which he was not allowed to
attend adjustment hearings. He explains that segregation
inmates are not allowed any of the amenities permitted in
general population. As relief he seeks ten thousand dollars
in damages. ECF 1 at pp. 5 - 6.

Defendants
assert that Cohen refused to sign the receipt indicating he
received a copy of the Notice of Infraction charging him with
violation of rules 101 (assault or battery on staff) and 400
(disobeying a direct lawful order). ECF 20 at Ex. 1 at pp. 2
- 4. Cohen's refusal to sign the receipt was witnessed by
Officers Marken and Shaffer. Id. at p. 2; see
also Ex. 3 at p. 2.

The
adjustment hearing was conducted on March 11, 2014, by
hearing officer La'Tricia Taylor. ECF 20 at Ex. 4.
Defendants assert that Cohen was heard in absentia
"because he was on staff alert due to his assault upon
the officers." Id. at p. 8, Ex. 3 at p. 8, Ex.
5, p. 2, Ex. 6, p. 2. Defendants maintain that Cohen did not
appeal the Warden's decision finding him guilty to the
IGO until August 25, 2014. Id. at Ex. 4, pp. 12 -
13.

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